FAO/222/2018 of JANTA AYURVEDIC AUSHADHI PRATISHAN & ORS Vs CHEMIMPEX HOLDING PVT LTD & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI+FAO 222/2018, CM APPL. 19970/2018, CM APPL. 19971/2018

JANTA AYURVEDIC AUSHADHI PRATISHAN & ORS

..... Appellants

Through:Mr. Vishal Sinha, Advocate.

Versus

CHEMIMPEX HOLDING PVT LTD & ORS

Through:

..... Respondents

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRIO R R%16.05.2018

The appellant’s application under section 34 of the Arbitration andConciliation Act, 1996 challenging the Arbitral Award of Rs. 1,71,61,583/-dated 13.01.2017 on the ground that they have no notice of the ArbitralProceedings. The application under section 34 of the Act was dismissed onthe ground that it was not filed within prescribed time.The impugnedorder inter alia held as under:-

“4. I have considered the submissions and perused thejudicial record. It is observed that the award was passed on13.01.2017 but, the present application u/s 34 of theArbitrationandConciliationAct,hasbeenfiledon12.10.2017. There is nothing in the plaint showing as to whenthe petitioners had received the copy of the award or when thepetitioners came to know about passing of the Award inquestion; the pleadings in the petition are vague; thepetitionershavenotmovedanyapplicationseekingcondonation of delay; no request in the plaint has been madeto condone the delay.

(a) The provisions u/s 34 (3) of the Arbitration and

Conciliation Act, 1996 requires that the application for settingaside the Arbitral Award, be made within three months fromthe date on which, the party (who is moving the petition), hadreceived the Arbitral Award or the same may be filed evenafter the lapse of the aforesaid period within period of thirtydays if, the court is satisfied that the applicant was preventedby sufficient cause from making the aforesaid applicationwithin the aforesaid period of three months. It is apparentfrom the judicial record that the petition has been filed afterthe lapse of about nine months from the date of the award; noobservation can be made as to where the copy of award wasreceived to the petitioners as the same has not been disclosedin the petition; the onus was on the petitioners to show thatthey were prevented by sufficient cause to institute theaforesaid petition within the aforesaid stipulated period as perlaw but, the petitioners have neither pleaded condonation ofdelay in the plaint nor have moved any separate application inthis regard.

(b) As per case law titled as Northern Railway v. M/s.Pioneer Publicity Corporation Pvt. Ltd. & Ann, FAO (OS)436/2015, South Delhi Municipal Corporation v. GaganSahni, FAO (OS) No. 291/2013 and State of West Bengal &Ors. v. Associated Contractors, CA No. 4808/13 cited by Ld.Counsel for the respondents, it is apparent that compliance ofsection 34 (3) of the aforesaid Act, is mandatory but, as thepetitioners have not discharged their onus on this aspecttherefore, it seems that the application cannot be entertainedas barred by limitation therefore, the other grounds taken bythe petitioners to challenge the aforesaid award cannot beconsidered hence, the petition is dismissed with the aforesaidobservations and disposed of accordingly.

The appellant has handed over copy of the application under section34 of the Act. The Court finds that there is no averment as to when the copyof the Arbitral Award was delivered to him, so as to compute the statutoryperiod for filing the section 34 application. The application is short of

relevant and pertinent particulars. Furthermore, there is no application forcondonation of delay. The learned counsel for the appellant states that theperiod of limitation will start from the date he received the signed copy ofthe Award. However, in the absence of any averment in the section 34application, as to when he received copy of the award, the presumptionwould be that he received it on the date mentioned in it i.e. 13.01.2017.Therefore, the limitation would be calculated from that day. In view of theabove, the impugned order cannot be faulted. There is no reason to interferewith it. The appeal lacks merit. Accordingly, it is dismissed.

MAY 16, 2018RW

NAJMI WAZIRI, J.